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Even when spouses are trying to have a non-adversarial divorce, the emotions that arise can hijack innocent intentions and get in the way of achieving the bigger goals such as the children’s well being, future financial security for one another and children, and an outcome that feels fair. Resentment, regret, anger and sadness about the past are just a few of the difficult emotions that divorcing clients need to deal with while simultaneously trying to make very difficult financial and parenting decisions that will have long term consequences in the future.

If you’re finding it hard to bring your best self to the negotiating table and keep the focus on the future, try a little compassion: for yourself as well as your soon-to-be-ex. When you’re criticizing yourself or others all you can think about is punishment. Will punishment really help you reach your long term goals? On the other hand, when you’re being compassionate, you’re looking at ways to improve and make things better. I’ve come to realize that compassion is perhaps one of the most important ingredients to an amicable divorce, and, sadly, it is often missing.

Nelson Mandela once said “Resentment is like drinking poison and then hoping it will kill your enemies.”

An example of resentment vs. compassion in a divorce could look like this:

During the marriage, a father may have been working long hours and traveling for business. This left the mother to handle the majority of the children’s day-to-day needs. She scheduled the play dates, she arranged the classes, she met with the teachers and was the one who primarily took time off from work when the children were sick. The father was there when he could be, but because his job was more demanding, he often missed out on many of these child rearing responsibilities.

Now that they have decided to end their marriage and are planning to live apart, the father has let it be known that he wants to spend significant time with the children. He wants them to be with him for long weekends so that he can bring them to school on Monday mornings and he wants them to stay at his home on 1-2 school nights during the week.

If the wife is resentful and only focused on her unhappiness with the father’s lack of involvement with the children during the marriage, she may think that his goal is to hurt her and take the children away from her.

Conversely, if she is being compassionate and trying to understand the father’s point of view, she would understand his regret for his lack of involvement in the past and his desire to be a different kind of father in the future.

Which focus will be best for the children? Which focus will best help this couple as they negotiate all the other issues in their divorce?

It’s not always easy to cultivate compassion for others, especially when there are many emotions that keep you looking at all the past behaviors with which you’re unhappy. One idea is to practice building your compassion muscle by focusing on yourself first. If you make a mistake, don’t automatically beat yourself up. If you don’t follow through on a promise, remember you’re human and life happens. Showing this kind of compassion for yourself will make it easier to show compassion for others.

If you’re interested in speaking with an attorney or mediator who will help you focus on being more compassionate during your divorce instead of encouraging you to focus on your anger and resentment, contact us.

I was recently sitting at my desk when I received a text message from a phone number I didn’t recognize. In rapid succession I received the following missives:

“I don’t respect people who hit children.”

“You belong in jail for the rest of your life!”

“Where you can hit a woman!”

“LMAO, who’s not on parole!”

“How pathetic what a cheater you are too.”

This person, who was obviously in distress around a family law matter and possibly even dealing with domestic violence, was exhibiting a habit I see often with my clients: Talking to a spouse or partner directly becomes so emotionally difficult, they start using text messages as their main source of communication. While it can feel easier or safer to express difficult feelings by text or email, separating and divorcing couples should use these methods of communication only if they are careful about what they are writing before hitting the send button.

When we communicate electronically, we lose the ability to hear and see voice tones, body language and facial expressions, which are all things that activate a region of the brain called the amygdala and which tell us whether we are safe or whether we need to fight or flee. When I see email or text exchanges between my divorcing clients, I’m usually struck by how something I consider a simple miscommunication can be interpreted by my client as a slight or some other type of threat. Oftentimes, the party in receipt of that “threatening” email reacts in a way that inflicts similar pain. And from that place of polarized conflict the two parties spiral into a vortex of even more contentious messages and misunderstood intentions. The good news is that there are ways to stop electronic conflicts from escalating.

Bill Eddy, who founded the High Conflict Institute, has developed what he calls the “BIFF Response” method of responding to electronic communications. He recommends being Brief, Informative, Friendly and Firm:

BRIEF

Keep your response brief. This will reduce the chances of a prolonged and angry back and forth. The more you write, the more material the other person has to criticize. Keeping it brief signals that you don’t wish to get into a dialogue. Just write your response and end your message. Don’t take their statements personally and don’t respond with a personal attack. You don’t have to defend yourself to someone you disagree with.

INFORMATIVE

The main reason to respond to hostile mail is to correct inaccurate statements which might be seen by others. “Just the facts” is a good idea. Focus on the accurate statements you want to make, not on the inaccurate statements the other person made.

Avoid negative comments. Avoid sarcasm. Avoid threats. Avoid personal remarks about the other’s intelligence, ethics or moral behavior. If the other person has a “high-conflict personality,” you will not be able to reduce the conflict with personal attacks. You will only make the situation worse. High-conflict people feel they have no choice but to respond in anger – and keep the conflict going. Personal attacks rarely lead to insight or positive change.

FRIENDLY

While you may be tempted to write in anger, you are more likely to achieve your goals by writing in a friendly manner. Consciously thinking about a friendly response will increase your chances of getting a friendly – or neutral – response in return. If your goal is to end the conflict, then being friendly has the greatest likelihood of success. Don’t give the other person a reason to get defensive and keep responding.

You do not have to be overly friendly. Just make it sound a little relaxed and non-antagonistic. If appropriate, say you recognize their concerns. Brief comments that show your empathy and respect will generally calm the other person down, even if only for a short time.

FIRM

In a non-threatening way, clearly tell the other person your information or position on an issue and let them know that’s all you are going to say about it. Be careful not to make comments that invite more discussion, unless you are negotiating an issue or want to keep a dialogue going back and forth. Avoid comments that leave an opening, such as: “I hope you will agree with me that …” This invites the other person to tell you “I don’t agree.”

If you’re in the middle of divorce and using mediation or collaborative law, you are likely very conscious of the way you are communicating with your spouse in the presence of the mediator or lawyers as you work to move toward a resolution of your differences. By keeping the BIFF Response method in mind, your text and email exchanges can support all that hard work you’re doing to achieve a divorce that is non-adversarial.

As I picked up The New York State Bar Association Journal earlier in the month, the cover story intrigued me. It was called “More War Stories from the New York Courts.” It was about civil litigation cases that go on for years. The article didn’t discuss divorce, but that’s certainly what was on my mind as I read it.

I can’t imagine any parents would want to subject their children or themselves to the perils and terror of an actual war such as those raging in the Middle East, Africa and other parts of the world. So why are they so willing to subject their families to a war of their own making just because their marriage is ending?

In any war, generals send soldiers to fight the actual battle. In a divorce war, you’re sending your attorney to do all of your fighting for you. Once you start that war, you can pretty much count on the fact that any remaining goodwill between you and your soon-to-be-ex will be hijacked by the litigation process and a reasonable settlement will be that much more difficult to attain. When you’re not talking with your spouse face to face, you’re not able to get a true, intuitional sense of whether the two of you can find common ground. Instead, the gulf between you only widens and you’re more and more reliant on your attorney to interpret what your spouse (aka the “enemy”) is saying and asking for.

This may feel safer in the beginning of the divorce process when your emotions are raw and you can barely stand to be in the same room as your spouse. But, what is the end game that you’re fighting for? If you’re anything like the majority of my clients and their spouses, you BOTH want to feel financially secure in the end; you BOTH want to have a parenting arrangement that works best for your children; and you BOTH want to never have to go through this process again. So why not try a process such as mediation or collaborative law that is focused on finding a durable solution, that meets as many needs as possible, for every member of your family. Instead of a war story, you could have a peace story to tell.

War is hell. Don’t let your divorce turn into a long, messy quagmire, from which neither side will be able to extricate itself. Not only is it unlikely that you will feel you’ve actually “won” but the wounds from the battle can last forever.

To explore the mediation or collaborative process and find a way toward a more peaceful divorce, contact me.

I recently decided it was time to give my website a makeover. My website designer and I decided that blue would be a primary color in the design and she asked me to send her shades of blue that appealed to me.

I typed “blue” into my browser and went to work looking through Google images. Every shade of blue imaginable popped up. As I scrolled through, I found a few shades that appealed to me and there was one shade that I particularly liked, but I could only find it as the background to a word cloud. I spent quite a while looking for that same exact shade of blue that was clean and free of words. I had no success with my search, so I eventually decided to include the word cloud with the other shades of blues and sent them off to my designer.

A word cloud is more than just a collection of synonyms; the letters and words are designed to speak to the eye at the same time as they speak to the brain, guiding different people through different paths, ultimately leading to the same notion.

It was only days later that I actually “saw” the words that were covering up the blue I liked so much. Take a look at the image above. Every word in the cloud has a connection to an amicable divorce – words that I hear my clients speaking all the time as they are moving through their divorce process. They tell me their goals are to achieve stability for themselves and their children and to make sure they are protected during the process. They are sincere in their desire to reach a durable agreement. They want harmony with their future ex-spouse. They are seeking control in the process and freedom from a judge telling them what is best for their family.

I found this word cloud accidentally. In fact, I did everything to find the “perfect” blue that wasn’t sullied by any words. But if I had really looked at this image, I would have realized it appealed to me exactly because of the words. Sometimes we don’t see the forest through the trees. This time, I didn’t see the trees in the forest.

This is the same trap that I see my divorcing clients fall into. They all have goals that they’re trying to achieve and they keep striving to find the perfect solution or agreement that they think will meet those goals. It’s only later that they realize the answer is in front of them, even though it looked very different from what they expected.

A prime example is a client who may insist he wants 50/50 parenting time with his child, while his wife insists that the child should spend more weekday nights in her home. He may push back and try to convince her that 50/50 is the way to go. If they continue to argue over this point, it could destroy other agreements they’ve been able to reach that are also important to him. It’s my job to make sure he and I both understand what is important to him about this parenting schedule. This is going to require some introspection. He may tell me the goal is to have more quality time with his son, to be able to walk him to school and speak with the other parents and teachers, and to read him more bedtime stories at night. I need to encourage him to think about a schedule that meets those goals while simultaneously meeting his wife’s goals. In the end, a schedule that has the child with him 45% of the time may give him everything he wants and is still something his wife can agree to.

This kind of thinking – that only sees one solution to solve a problem – is very limiting and is a primary reason why divorcing couples end up in court. Instead, I want to help my clients determine what is important and why. This way they will be open to many options, rather than just the “perfect” one.

Sometimes people in the middle of divorce litigation realize that the court system just isn’t working for them. Time is going by, the costs are piling up, and they seem further from resolution than ever.

At this point, it may be time for them to look at an alternative process, such as mediation, but where do they start? For divorcing couples in New York City for whom finances are tight, I highly recommend looking into FamilyKind, which has been a great resource for many who have found themselves caught in expensive litigation with few results to show for all the money and efforts they’ve expended.

FamilyKind, working on a sliding scale based on income, provides a variety of resources for families in the midst of divorce or separation. Offerings include:

Mediation

Divorce and separation classes for adults, children and teens

Various educational workshops for families in transition

Support and networking groups

A Story of Success

A client came to me asking if I could help him reach an agreement with his wife. They had recently started the litigation process and my client was already clear that it was going to be a long and treacherous process with unguaranteed results.

I told him that I did not litigate, but I could represent him as a consulting attorney if he and his wife were willing to try mediation. I suggested he call FamilyKind and find out if they could provide a mediator for him and his wife.

The couple was referred to an excellent mediator and they told their respective litigation attorneys that they wanted to try this process. The wife’s attorney was supportive of trying mediation, the husband’s attorney did everything he could to dissuade his client from trying any process other than litigation.

As I warned in a prior blog post Changing Course (in your divorce), litigation attorneys are there to help fight and argue the case in court, but may not be as motivated to help you settle the case, come to an agreement or work with your soon-to-be-ex to determine what’s best for your children.

I’m happy to report that after just 3 mediation sessions, this couple was able to return to court with a signed settlement agreement they reached in mediation.

If you don’t like the way things are going with your divorce, explore a different approach. FamilyKind is a great place to start.

If you have questions about divorce mediation and collaborative law and how they can change the tone of your divorce into one characterized by cooperation, call me at 212-768-1115 or visit my website.

Divorce is one of the most difficult life experiences that anyone can go through. And while the clients who I work with are all committed to having the least adversarial divorce possible, it’s not always easy for them to find it in themselves to forgive their spouse for mistakes, treat them with compassion and respect and trust that promises will be kept. And that’s what was on my mind when I read a blog post from Jeri Quinn in which she described an African tribe that believes that each human being comes into the world as a good person who desires safety, love, peace and happiness. Yet, because we are all just human, sometimes we make mistakes in pursuit of those goals.

In the tribe that Jeri writes about, when someone does something harmful, they take the person to the center of the village where the whole tribe comes and surrounds them. For two days, they will tell the person all the good things that he has done, which helps to lift him up so that he can see himself as the good person he really is. See more here.

When a couple is ending their marriage they may each do things during the divorce that they hope will bring them the safety and happiness they crave, but they don’t always pursue these goals in the most productive way. Instead of getting what they want, they end up causing undue anxiety and anger in their spouse or children. Similar to the African tribe, a team of divorce professionals who are simultaneously focusing on the legal, financial and emotional aspects of divorce can lift these clients up and provide them with compassionate support when one (or both) of them falters.

I recall a couple who was ending their marriage after 15 years. The husband was the one who initially suggested a divorce and the wife eventually agreed, but as they engaged in settlement discussions around finances, parenting schedules and a move-out date, she continuously failed to follow through on her promises. The husband thought she was just trying to hurt him. The divorce coach, however, helped the husband and wife realize that she was terrified of ending the marriage and losing her day-to-day connection with her children. It didn’t help for the husband to get frustrated at her actions, because it only caused the wife to put up more road blocks to resolution.

Once the wife’s fears were acknowledged, the husband agreed that there was no point in reacting with frustration and anger. Instead, he agreed to move at a pace that felt comfortable to his wife and to compassionately address the issues that were causing her so much distress. As his anger subsided, her anxiety lessened and progress was made toward resolution.

As Jeri Quinn went on to write in her blog:

We can’t always control the circumstances around us, but we can control our own reaction to those circumstances. We can choose to react by letting someone else’s negativity trigger our own retaliation. Or we can choose to react compassionately by looking at the person on the inside who has been diminished by all the happenings that have impacted them….

As a divorce attorney and mediator, I’m not only committed to helping my clients find that compassion, but also to helping them control how they react to their spouse’s actions. Not only will it help my client feel less anger and resentment, but it will help support their spouse to be their best self during this difficult time. That’s a win/win for everyone.

“Nobody can go back and start a new beginning, but anyone can start today and make a new ending.”
– Maria Robinson

As true as this quote may be, it’s not easy to think about re-writing your future when you’re in the process of divorcing. You want to put your marriage behind you, but removing yourself from it is not the sort of thing that happens by snapping your fingers. You need support.

When you’re considering divorce, you should seek out an attorney who understands that the dynamic of your marriage does not need to control the dynamic of your divorce; an attorney who wants to help you break the cycle of arguments and miscommunications that engulfed your marriage.

Traditional divorce attorneys who primarily litigate have a habit of using that vortex of negativity – a vortex which you are trying to escape – to convince you to accept the idea that your relationship with your soon-to-be-ex will always be that way and that you need your attorney’s protection.

Collaborative attorneys, on the other hand, are happy to encourage your effort to find a different way to communicate, but we can’t do it on our own. At the end of the day we are lawyers, not mental health professionals, and that’s where coaches come in.

If you want the way you communicate in your divorce to be more productive than the way you communicated in your marriage, you are more likely to succeed if you get the help of a divorce coach. Some of the things that coaches help with are:

Helping each of you to see how you may be triggering your spouse and stop doing those things

Giving you tools so that you aren’t as easily triggered by him or her

Helping you to process the emotions that you are feeling so that they don’t hijack your ability to make important decisions

Identifying the best means for communication around certain issues

If you look at the items above, you can see how a coach is focused only on the present and the future, not the past. They need to understand the past, but they will not help you or your spouse to keep rehashing it. The coaching sessions also serve as a safe place to voice other frustrations that might cause a log jam in the stream of negotiations.

The team approach offered by collaborative law yields the best chance for divorcing spouses to “…start today and make a new ending.” Divorce coaches in particular can help couples to concentrate on the future while offering concrete ideas on how to get through the present.

Something I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.

For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don’t realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.

Below are just some of the pitfalls that people encounter when they separate unofficially:

When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.

Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned – or debts being incurred – by either spouse may still be considered part of the shared marital estate.

The higher earning spouse is not necessarily going to get credit under the law for the amount of support they’ve been providing.

Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.

If either spouse starts a new relationship and spends money on the new partner, it can be considered a “waste of marital assets,” which can result in complicated requests for repayment (financially as well as emotionally).

Often times, clients will be dealing with many of these consequences all at once. For example, a client of mine was supporting her husband for 10 years after she moved out. He was still hurt by the fact that she left him and, because she felt guilty, she still gave him access to her credit cards and she was still depositing her paychecks into a joint account. They hardly spoke and had each moved on to new relationships but the hurt and guilt was still there.

I had to tell her that her husband had every right to expect that the comfortable lifestyle she had provided for those years would continue. It was difficult for her to accept this fact, but she eventually agreed to give her husband some significant real estate holdings she had acquired during their separation in order to reach an agreement with which he was comfortable. This was despite the fact that she had already paid a small fortune to support him and they had lived the majority of their married life apart.

As we were getting ready to sign the settlement agreement, she explained the reason for her generosity:

“I know I gave him more than I needed to, but I was ready to finally move on with my life and I decided it was better to give my money to him instead of our lawyers.”

Why unnecessarily give money to anyone? If you are ready and willing to deal with the legal, emotional and financial issues of your separation, before you actually decide to move out, you will be better-protected in the long term. Let a mediator or collaborative attorney help you negotiate a written agreement where the needs of both you and your spouse will be considered. It will not only help to bring emotional closure to your relationship, but will protect both of you from potential legal and financial entanglements in the future.

I recently read an article on The New York Times wellness blog by Tara Parker-Pope called ‘The Decisive Marriage.’ In it, Parker-Pope explores the research gathered through The National Marriage Project and asks how does being decisive – or not – affect a marriage? Though it is not mentioned in the article, I thought some of the points would be especially helpful for people considering a prenuptial agreement. Parker-Pope writes:

Couples should make active decisions about their relationships and major life events. Showing intent in some form — from planning the first date, to living together, to the wedding and beyond — can help improve the quality of a marriage over all.

Prenuptial agreements are, by definition, a written agreement reflecting the intentions of the parties regarding their marital rights and obligations. By looking together toward the future, prenuptial agreements can help the couple to purposefully plan for this important, next stage of their relationship. Questions can be discussed and answered such as:

How will property be divided upon death or divorce?

Will spousal support be paid? If so, under what conditions?

How will household expenses be paid during the marriage?

Will having children result in different financial terms?

Negotiating a prenuptial agreement does not have to be an inherently unpleasant process.

When I’m representing the person who is initiating the agreement, I start by asking him or her: Why do you want this type of agreement? What is important to you? What do you hope to achieve? I then suggest options that can help the client to achieve his or her goals and I coach each client about how to discuss these goals with his or her fiancé. Ideally, I will not start drafting the agreement until I know what terms the couple may agree on and what issues will need further discussion.

When I’m representing the person who is being asked to sign an agreement, I am very often asked to review a document that has already been drafted. I advise my client about what would happen if they signed this particular document and ask questions to determine if this agreement meets their expectations and goals. If changes are needed, I will speak to the other attorney and will often suggest a 4-way meeting with the clients so that we can help them discuss the open issues in a safe and productive environment. If the couple is open, honest and decisive, the process can be a positive experience for both parties.

And when I’m working with a couple in mediation who are negotiating their prenuptial agreement, I’m not only helping them to answer all of these questions, but I’m helping them to find terms that will allow both of them to feel safe and secure enough to enter into their marriage.

Everybody wants their marriage to “start out on the right foot,” give it the “college try,” and live “happily ever after.” Instead of a marriage based on cliches and crossed fingers, I suggest going off the script with your fiancé and talk about the expectations of your life and marriage. If you enter into your marriage with this kind of decisiveness and intention, there is a much better chance of happiness and success.

The feeling of or ability to be in control can be an elusive concept to many, and the lack of control can be a source of anxiety to those who crave it. When it comes to personal matters, like divorce, the need for control may be even greater. The feeling like one is not in control of his or her own future or relationship is a common frustration expressed by divorcing couples who are litigating and at the mercy of the court system. Luckily, there are alternative options for couples wishing to seize control of their divorces.

Mediation and collaborative law are private processes. These processes keep everything between just you, your attorneys and any other professionals who you invite into your case.

Besides offering privacy and dignity, the mediation and collaborative law processes also provide a degree of control that is absent from the court system:

You meet at times that are convenient for you and your spouse and that work with your schedules, not the judge’s.

You’re not sitting around the courthouse, for hours at a time, waiting for your case to be called while your attorney is billing for the time she is sitting next to you, checking her emails.

While you are expected to provide full financial disclosure, you’re trusted to do so and you will be asked questions in a respectful way.

You won’t be cross-examined and attacked by your spouse’s attorney.

Over the years I have noticed that mediation and collaborative law tend to attract many business owners and consultants. My theory is that these types of clients are used to having more autonomy and control over their personal lives, and they don’t want to give that up just because their marriage is ending. Yet, striving for this type of control around your divorce process makes sense even if you are holding down a job with regular hours. Divorce is hard enough without also fearing that you are going to lose your job, or that your childcare provider is going to quit on you because you can’t keep your schedule regular.

In mediation and the collaborative process, you and your spouse are in control of the times when you meet and the issues that are discussed at each meeting. You are encouraged to say what is important to each of you as you work toward your agreement. If you expect that this kind of communication will be encouraged in court or that you will have the chance to “explain your story to the judge,” you will be very disappointed. Once you are in litigation, not only will your attorney tell you not to talk to your spouse, he or she will also make it clear that you are not to speak to the judge unless you are asked a direct question. While the attorneys are arguing your case to the judge and arguing with each other, you and your spouse will be expected to sit quietly and just wait to be told what’s going on.

Don’t just sit there! Take control of your divorce by exploring mediation and the collaborative law process at www.vaccalaw.com.